Monthly Archives: May 2016

Haochen Sun says the moral outrage over the luxury brand’s accusation of trademark infringement has encouraged law-breaking behaviour, yet the real issue of concern, social inequality, has not been addressed

Much to everyone’s surprise, Gucci apologised last Friday to Hong Kong stores selling funeral paper offerings after sending out a warning letter accusing them of infringing its trademark right. It may seem this battle has ended with the poor “ants” (stores) triumphing over a rich “elephant” (Gucci). This sentiment will resonate with many people. But, in fact, neither of these parties is the real loser: rather, it is the general public.

First, while Gucci rushed to apologise “to anyone [its staff] may have offended”, the ants-versus-elephants sentiment has encouraged law-breaking behaviour. Second, the public attention on the case has nevertheless failed to focus on the underlying social justice problems in Hong Kong and many other parts of the world.

It is clear from the public response that few people gave serious consideration to whether Gucci’s trademark right was being infringed by sales of the paper offerings. Instead, Gucci was accused either of showing no respect to the Chinese tradition of burning paper offerings to the dead or of waging a war against small business owners on main street.

Bear in mind that the paper replicas of Gucci handbags bore the intertwined “GG” logo, which Gucci has registered with the Hong Kong Intellectual Property Department. Lawyers who were asked by the media to comment on the case argued that the paper offerings did not infringe Gucci’s legal right to prevent consumer confusion under our trademark law. Surely, no reasonable consumer of luxury handbags would be misled into believing the paper replicas were Gucci-made handbags. The venue and price at which they were sold defy any second-guessing that Gucci had ventured into the funeral products market.

But the paper offerings did infringe another legal right: Gucci’s right to prevent its trademark from being diluted. In an interview with The New York Times, I emphasised that associating Gucci with funeral products or services blurred the distinctive character of the trademark that Gucci relies on to merchandise its goods. That association would harm the firm’s reputation as a supplier of luxury goods.

Paper handbag offerings are of such a low quality that they are suitable only for burning. Funeral shops therefore may have taken unfair advantage of Gucci’s brand reputation. The selling power of their paper offerings stems from the Gucci trademark, into which Gucci has invested a huge amount to market itself as a luxury brand. All such uses of the trademark that dilute the brand are prohibited by Hong Kong’s trademark law.
In socially polarised Hong Kong, authority of the law has become more important than ever

Arguments about whether Gucci’s legal right has been infringed have not figured highly in the swirling outcry over the warning letter. If the public sentiment against Gucci’s action persists, it is conceivable that more laws could be violated on the same basis. As long as the public lauds certain actions, then more private property, personal liberties or even public resources could be encroached on. The proliferation of law-breaking action could eventually threaten the institution of the rule of law. The ultimate victims would be members of the public.

In socially polarised Hong Kong, authority of the law has become more important than ever. Even though the operational costs and political risk of doing business keep increasing, many people and companies retain confidence in Hong Kong because of its legal system, which is still effective enough to make the city safe and business-friendly. From this perspective, we must say “no” to breaking the law and taking illegal advantage of private property (trademarks included).

On the other hand, the public’s celebration of Gucci’s apology has muted discussions about how to promote social justice in Hong Kong and many other parts of the world. Actually, most buyers of paper replicas of luxury goods are in the low-income bracket. They burn the replicas with the wish that their deceased relatives can enjoy these goods in the afterlife, even though they could not afford them during their lifetime.

This perspective inspires many to take the side of the funeral shop owners because these shops are seen as helping low-income people gain psychological comfort by momentarily “lifting” them out of their income bracket. The supply of “luxury” paper offerings meets the market demand for social justice. Rich and poor can now equally afford luxury goods for their deceased relatives.

But do “luxury” paper offerings actually promote social justice? Not at all. After all, the dead are dead. They will never be able to enjoy luxury goods. Even grander “luxury” offerings such as paper yachts and jets also won’t help. The psychological comfort felt by their relatives is merely an illusion.

Rather than being outraged by Gucci’s actions, we should be acting to help those who are alive but suffering from social inequality. We should demand that “luxury” paper offerings to the dead not be used as a tool to cover the sufferings of the living. Hong Kong has terrible income inequality – one in five people live in poverty, while about 100,000 people live in cage homes and on rooftops. Many other parts of the world are similarly gripped by inequality. According to the World Food Programme, one in seven people worldwide live with hunger and one in four children in developing countries is underweight. Around the globe, there are more hungry people than the combined populations of the US, Canada and the European Union.

So, should we still talk about the “human right” to burn “luxury” paper offerings for the dead? No. We should face the urgent problem that many of our fellow human beings are dying of hunger. We have to save lives first and then strive to improve the quality of life for the poor.

Gucci serves luxury consumers who control much of the world’s economic and political resources, so the public should take its apology over the funeral offerings as an opportunity to reiterate that luxury-goods companies have a social responsibility, and that they urgently need to act on it. Luxury-goods companies and their consumers could reduce income inequality and produce or use goods that promote ethical consumption. A civilised society is one in which the rich take genuine care of the poor.

If we take the law seriously, we can raise a bolder suggestion: people should abandon “luxury” paper offerings. Let’s respect the ethos of environmental law. The making of paper has a cost – the lives of trees and the potential impact of burning, including air pollution and forest fires. If we take social justice seriously, we can raise another bolder suggestion: people should spend less on luxury goods. Let’s help poor people who are still struggling to make ends meet.

Haochen Sun is an associate professor at the University of Hong Kong’s Faculty of Law

Kelly Yang says Hong Kong needs to teach its kids how to disrupt established norms, rather than encourage them to go into traditional ‘safe’ professions, to build our economic resilience

This summer, I spent a month in San Francisco, listening to friends sigh over soaring house prices, which are now over US$1 million on average. Sound familiar? The difference, though, is that in San Francisco, the median household income has risen over 34 per cent in the past decade, whereas in Hong Kong, it has risen only about 10 per cent. Average annual household income in San Francisco is now US$104,879; in Hong Kong, it’s US$33,933. The reason for this stark difference is obvious: unlike Hong Kong, San Francisco has moved beyond finance to a new phase of growth: technology.

As you walk through the streets of San Francisco, there’s something’s electrifying about the air. I overheard people in cafes talking about how they’re going to change the world. And in their case, they actually do, and they also bring lasting economic growth to the city, in the form of investment in human capital, higher education infrastructure and development. This creates jobs at all levels. That’s why median income levels jump.

This sort of economic transformation hasn’t happened in recent years in Hong Kong, as most of the city’s wealth is wrapped up in the big banks and wealthy tycoons’ pockets, and the “trickle down” effect is limited. Our financial industry is also heavily tied to the mainland. Every day the mainland economy suffers, Hong Kong slides further into irrelevance.

The solution is to diversify and innovate, create other sectors beyond finance and tourist-reliant commercialism. We need to become strong economically in our own right, not least because it is the only way we will ever get Beijing to listen to us.

To do this, we need to make fundamental changes to education and language emphasis. First, we need to create a more highly educated workforce. Specifically, we need to shift the focus to creative and critical thinking, project-based learning, leadership and entrepreneurship. It’s important to lay a strong foundation in science, technology, engineering and maths. But it’s even more important to teach the ability to really question things. That, to me, is why San Francisco is ahead of the curve. Their workers are fundamentally better at “disrupting” established norms.

Here in Asia, generations of lawyers and i-bankers teach their kids to study hard so they can go into the same professions. “Stability over risk” is the motto of most families. This may have worked well for us in the past, but if we keep it up, it will be our greatest downfall. Recently, Bloomberg reported that the number of Harvard MBAs taking jobs in i-banking has plummeted. Instead, they are joining start-ups. That’s the kind of forward thinking Hong Kong needs.

Finally, we need to shift the language focus in schools. If we want to be the home base for the world’s next Uber, our workers need to be able to communicate fluently in languages spoken by the rest of the world. Right now, like it or not, that’s English and Putonghua. However, the vast majority of our local school classes at primary level are taught in Cantonese. Studies show that our standard of English as a city is in decline, while other Asian cities’ levels are on the rise. We need to bring up our level of English to surpass Singapore’s. We also need to bring up our level of Putonghua, not because we want to kowtow to China, but because we want to leverage the massive consumer market. It’s not personal; it’s practical.

If we do all this, we have a real shot at changing our destiny. If we want a better future, we need to be not only a special administrative region but also a self-bettering one.

Kelly Yang teaches writing at The Kelly Yang Project, an after-school centre for writing and debate in Hong Kong. She is a graduate of UC Berkeley and Harvard Law School.

Fozia Lone says nothing in international law obliges the practice of universal suffrage, and further democratic development in the SAR is not possible without considering Chinese sensitivities and aspirations

Since August 2014, when the National People’s Congress Standing Committee publicised its decision to retain the vetting procedure for civil nomination for the 2017 chief executive election, there has been political pandemonium in Hong Kong, resulting in, among other things, the Occupy Central movement.

Pro-democracy groups condemned the Standing Committee’s decision, claiming that such a selection mechanism was contrary to the international standards of “universal suffrage” and the right to participate in public life, which are enshrined in Article 25 of the International Covenant on Civil and Political Rights. They also said it went against the promises stipulated in the 1984 Sino-British Joint Declaration.

Following Occupy, many writers have discussed the issues of political reform, democracy and the future of “one country, two systems” in Hong Kong.

However, these discussions have been rather inadequate and, in certain cases, lopsided, as they naively viewed political development in Hong Kong through the prism of Article 26 (the right to vote) of the Basic Law only, forgetting that this document is an incarnation of the “one country, two systems” plan made between China and Britain.

The Chinese People’s Political Consultative Conference, in its first plenary session in 1949, adopted the Common Programme, the country’s de facto constitution for the next few years, and Article 3 stated, “The People’s Republic of China must abolish all the prerogatives of imperialist countries in China”.

Clearly, autonomy under this plan is not a decentralised right but is linked to a parallel duty to remain loyal to the motherland. The “one country, two systems” plan was incorporated in the Joint Declaration, a key part of the handover of Hong Kong, and was then domestically incorporated into the Basic Law (articles 1 and 2). Further, under Article 158, the right to interpret the Basic Law lies with the NPC Standing Committee.

Through Article 39 of the Basic Law and the Hong Kong Bill of Rights, the International Covenant on Civil and Political Rights is enshrined in Hong Kong law. The Basic Law promised steady, incremental promotion of democracy. Article 45 states that the chief executive will be “selected by election or through consultations held locally and be appointed by the Central People’s Government” and the method for selection “shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress”.

It further promised that the ultimate objective would be to select the chief executive by “universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures”.

It was through the Basic Law that Hong Kong for the first time enjoyed any form of democracy. Prior to the handover, Hong Kong was ruled by Britain through its designated governors. The central government has, practically, fulfilled its promise and the chief executive elections have been increasingly democratic; the Election Committee has grown to 1,200 members, compared to the 400 members in the first chief executive election.

It must be noted that within international law, “universal suffrage” is not an entitlement. In fact, there is no democratic prerogative under international law that requires China to implement Article 25 of the International Covenant on Civil and Political Rights within Hong Kong. “Universal suffrage” is not a binding obligation for attaining internal self-governance; nor does it create a political right.

Since the 1990s, with the end of the cold war, attention has turned increasingly towards domestic governance. Democracy has permeated international law literature during decolonisation and aimed to prevent discrimination. For instance, Article 1 of the international covenant obliges member states to promote the internal right to self-determination of peoples. Article 25 calls for political participation, which is to be prescribed by national governments on the basis of their constitutional law.

In Hong Kong, the procedure for voting rights is determined by the Basic Law and falls within the internal competence of the central government. Hence, international law cannot be used to bully China to implement Article 25 within Hong Kong.

Further, democracy, as a Western political ideology, has not always been a success, as can be seen with the recent Middle East unrest. In Asian countries, such as India, Pakistan and Bangladesh, democracy is unfortunately not a success story, and there are myriad instances of vote-rigging, sectarian violence, corruption, human rights violations and the like.

The ipso facto implementation of Western-style democracy in a culturally and ideologically diverse society ends up creating hybrid demons. South Asia has a history of political assassinations and government being run as a “family business”. Votes can be bought from the poor for meagre meals. In my understanding, this “universal suffrage” is utter nonsense.

China is developing fast and prioritising economic development. Democratic ideas cannot be sustained in underdeveloped states. Western nations, including the US and Britain, were not practising democracies with equal voting rights during their early stages of economic development.

Further democratic developments in Hong Kong are not possible without consideration of Chinese historical sensitivities and economic aspirations.

Undeniably, the contemporary Chinese position on Western international law is shaped by Chinese resentment over the two Opium wars, which forced it into accepting Western imperialism in the form of many unequal treaties, including one – the Treaty of Nanjing in 1842 – that ceded Hong Kong to Britain.

Today, China, which traditionally was a civilisational state, defines “sovereignty” in a way that allows it to defend its legitimacy and unity against any foreign interference.

Self-government is the prerogative of national governments and therefore responsible nations should refrain from using international law as justification to press China over Hong Kong.

I am hopeful that China will adopt a flexible policy over political reform in Hong Kong that will win the hearts and minds of people.
Dr Fozia Lone is an assistant professor in the School of Law at City University of Hong Kong

Yonden Lhatoo says the migrant women who toil for our benefit deserve proper facilities in which to rest and recuperate on their days off

Hong Kong’s sweltering heat and haze took their toll on a large gathering of mostly domestic helpers from Indonesia celebrating their country’s national day in Victoria Park on Sunday.

Some 20 women collapsed under the blazing sun, and ambulances had to be called in to take nine of them to hospital for heatstroke.

This was an outdoor event organised by the Indonesian consulate, but it got me thinking about an old problem that nobody in this town could be bothered to fix: the lack of a proper venue where foreign domestic helpers can relax on their days off.

We have 330,000 maids in Hong Kong, mostly from the Philippines and Indonesia, and the vast majority spend six days a week with very little to no privacy in the cramped confines of their employers’ homes. They get just one day off a week – usually Sunday – and that’s when we see them amassed in Victoria Park, Chater Garden and its surrounding areas in Central, or any available public space outdoors.

They sweat it out in summer and huddle together in winter on footbridges and under flyovers in undignified conditions, relishing the precious hours they get to throw off the yoke of servitude and enjoy the company of friends. And yet, to many passers-by, they’re an eyesore or a nuisance.

I’ve heard people say they “bring down the class” of upmarket venues. There have been shameful campaigns in the past to remove them from public spaces such as Chater Garden and Statue Square. How difficult would it be for our tycoons and celebrities to build a dedicated community centre or two for these women? I’m talking about those who have no qualms about blowing HK$100 million on a wedding in a city where nearly 20 per cent of the population live below the poverty line.

But more than our tycoons, many of whom make substantial donations to charity, our super-rich government has a moral responsibility to help.

It could be done without much effort if the bureaucrats in charge had the conscience and political backing as well as public support, although there’s a severe scarcity of such commodities these days.

Money is not the issue: Hong Kong is sitting on piles of cash that our financial secretary is saving up for that mythical rainy day which never comes. At last count, our fiscal reserves stood at more than HK$800 billion.

There’s plenty to spare for our domestic helpers. The government has wasted bigger bucks on white elephants in the past, and continues to pour cash into seemingly bottomless pits like the high-speed rail link to Guangzhou and the gigantic bridge linking Hong Kong to Macau and Zhuhai.

Just look at all the under-used clubs and sports facilities – catering to an exclusive, well-heeled minority – on prime public land that the government has been renting out to private organisations for peanuts under outdated agreements. Don’t tell me it can’t afford to do the same for a far worthier demographic who would benefit.

Like it or not, this city owes a huge debt of gratitude to the hundreds of thousands of women who leave their homes and loved ones to work as maids here. Yes, we offer them the opportunity to make more money doing menial labour here than they would get in more dignified professions such as teaching in their poverty-stricken home countries, but the benefits we reap make them indispensible. Without them, families’ incomes would be cut in half because both parents can’t go to work if there’s no one at home to look after the children or elderly grandparents.

Sam Tsang [5]I can’t understand Hong Kong sometimes. Our city gleefully embraced the so-called Ice Bucket Challenge that became a rage last year. It was to raise awareness and money for amyotrophic lateral sclerosis, a disease that most people in this town had never even heard of until celebrities began dumping buckets of cold water on their heads. Government officials joined in the fun.

No disrespect to sufferers of the disease and the philanthropists who chipped in, but charity begins at home, and here’s a more immediately worthwhile cause staring us in the face.